Up until November 1, employers have the opportunity to submit comments on the Equal Employment Opportunity Commission’s (EEOC) proposed update to enforcement guidance on workplace harassment. Notwithstanding possible clarifications by the commission in response to public feedback, it’s unlikely to see any substantial changes, making now an apt time to fully understand and apply the proposed guidance.
The guidelines outline specific steps an employer can take to anticipate and prevent workplace harassment—extending multiple policies, complaint procedures, training, investigations, as well as corrective measures. However, these measures are all underpinned by the crucial notion of what could constitute harassment.
In its scope, the proposed guidance incorporates sexual harassment, as well as harassment based on other protected characteristics under Title VII or any other federal law. This includes provisions for racial and religious harassment under Title VII, and age- and disability-based harassment under the Age Discrimination in Employment Act (ADEA) and the Americans with Disabilities Act (ADA) respectively.
Unfortunately, many organizations prioritize the prevention of sexual harassment whilst overlooking other forms of harassment. With this comprehensive approach, EEOC’s guidance could serve to rebalance the focus, ensuring that harassment related to factors other than sex is not relegated to an afterthought.
Including over 350 footnotes, the proposed guidance offers a variety of harassment examples and can be segmented into three categories based on the changes from the earlier guidelines established in 1999.
- Changes based on key developments in the law, including examples of harassment based on LGBTQ+ status, following the US Supreme Court decision in Bostock v. Clayton.
- Changes to accommodate shifts in our working patterns, acknowledging the realities of remote and virtual workspace, which can also precipitate harassment.
- Changes to reflect examples of harassing conduct that were less prevalent 25 years ago but have gained increased relevance now, such as antisemitism.
Despite these comprehensive efforts, some gaps remain; notably, the EEOC’s failure to address potential conflict between an employee’s sincere religious beliefs and the practice of “mis-gendering” – where someone intentionally and repeatedly uses a pronoun that’s inconsistent with an individual’s known gender identity. Employers should be prepared to navigate these complexities in their policies to ensure fair interactions among diverse employees.
The proposed guidance also focuses exclusively on federal law, disregarding potential nuances in state and local laws. Employer guidelines must extend to account for these additional protected characteristics that may not be covered by federal law, such as marital status, familial status, and unemployment status.
Finally, the guidelines emphasize the importance of carefully wording corrective actions to avoid making legal conclusions that may be deemed admissions. There is considerable difference between conduct labeled as unlawful harassment and conduct deemed offensive under the company’s harassment policy.
In conclusion, while the EEOC’s updated enforcement guidance on workplace harassment marks a significant step in the right direction, several challanges await employers in the implementation phase. Employers would do well to study the proposed guidelines closely to ensure any future harassment policy is comprehensive, legally compliant, and respectful to all employees, irrespective of their individual identities and beliefs.
This analysis is based on an article by Jonathan A. Segal originally published on Bloomberg Law.